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ELCDismissedNyahururu ELC (Originating Summons filed 7.10.2024)

Wahome & another v Ngunjiri (Enviromental and Land Originating Summons E005 of 2024) [2026] KEELC 1383 (KLR)

Environment and Land Court
4 March 2026
971 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nyahururu ruled that when time starts running for an adverse possession claim is a factual question, so the landowner's early attempt to end the case failed.

What this practically means

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Executive summary

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The plaintiffs filed an Originating Summons on 7.10.2024 claiming one acre of Laikipia/Nyahururu/1247 by adverse possession. The defendant opposed, contending that she had earlier sued the plaintiffs for eviction in Nyahururu ELC No. 330 of 2017, transferred to the magistrates' court as CMELC No. 214 of 2018, in which judgment was entered in her favour on 28.8.2020 and the plaintiffs vacated. She filed a Preliminary Objection dated 2.9.2025 arguing that 12 years had not lapsed since the judgment of Nyandarua ELC Appeal No. 15 of 2020 delivered on 29.6.2023, which appeal had overturned the magistrates' decision. The defendant relied on Francis Muthoga Muhika v Samuel Karonjo Muriuki; the plaintiffs relied on Attorney General v Andrew Maina Githinji, arguing the objection was not a pure point of law. The court, applying Mukisa Biscuit, held that when time starts running for adverse possession is a question of fact requiring evidence, not a pure point of law. It further found that the appeal judgment, which noted the 1st plaintiff could plead limitation and adverse possession as a defence absent a counterclaim, did not bar his claim and restored the parties to their pre-suit positions. The 2nd plaintiff, not having been party to the previous suits, brought a fresh claim. The Preliminary Objection was dismissed with costs to the plaintiffs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objection that 12 years had not lapsed since the appeal judgment is a pure point of law that disposes of the suit
  2. 2.Whether the question of when time starts running for adverse possession is a matter of law or fact
  3. 3.Whether the appeal judgment in Nyandarua ELC Appeal No. 15 of 2020 bars the plaintiffs' adverse possession claim

Key legal issues

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01

Whether the Preliminary Objection was a pure point of law

Holding

The objection was not merited because the computation of time in adverse possession is a question of fact requiring evidence, and the prior appeal judgment did not bar the plaintiffs' claim

Reasoning

Relying on Mukisa Biscuit, the court noted a preliminary objection must be a pure point of law. The defendant's objection turned on when time began running, which depends on facts such as voluntary surrender of possession, and evidence must be tendered. Further, the appeal judgment of 29.6.2023 merely restored the parties to their pre-suit positions and did not bar the 1st plaintiff's claim; the 2nd plaintiff was never a party to the previous suits.

p. 2
02

Effect of the appeal judgment in Nyandarua ELC Appeal No. 15 of 2020

Holding

The appeal judgment overturned the trial court and returned the parties to their prior positions, leaving the plaintiffs free to pursue their adverse possession claim

Reasoning

The appeal had held that the 1st plaintiff was entitled only to plead limitation and adverse possession as a defence since there was no counterclaim for registration as proprietor. The court here construed that as not barring the 1st plaintiff from asserting his claim, so the parties were restored to the position before ELC No. 330 of 2017 was filed.

03

Status of the 2nd plaintiff's claim

Holding

The 2nd plaintiff, having not been a party to the previous suits, brings a fresh claim

Reasoning

The defendant's objection based on prior litigation could not defeat the 2nd plaintiff's claim because she was never a party to the earlier suit and appeal, so her claim for adverse possession is fresh before the court.

p. 3

Legal principles established

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  • When time starts running for purposes of an adverse possession claim is a question of fact, not law, requiring evidence

Court orders

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  1. 1.Preliminary Objection dated 2.9.2025 dismissed with costs to the plaintiffs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction over adverse possession claims

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

All in all, I find that the Preliminary Objection is not merited, the same is hereby dismissed with costs to the plaintifis.
p. 3Final orders - dismissal of preliminary objection
I find that the question as to when time starts running for purposes of an adverse possession claim is a question of fact and not law.
p. 2Computation of time in adverse possession
A litigant who is sued for recovery of land is at liberty to plead limitation and adverse possession as a defence only without necessarily counterclaiming for his registration as a proprietor
p. 2Adverse possession as defence - quoted from prior appeal judgment

Issues in the judgment

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minor

The judgment is dated 4 March 2026 but refers to submissions dated 5.11.2025 and a ruling on a Preliminary Objection dated 2.9.2025 within a suit said to have been instituted in 2024; the internal chronology is not further explained

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wahome & another v Ngunjiri (Enviromental and Land Originating Summons E005 of 2024) [2026] KEELC 1383 (KLR)", Case Analysis (2026). Nyahururu ELC (Originating Summons filed 7.10.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1383/eng@2026-03-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.